VI. Renewed Cycles of Violence

Peace without justice cannot be sustainable. It is a terrible mistake to believe that people will simply forget. Even after a hundred years, sometimes even after several hundred years, unpunished crimes continue to represent huge stumbling blocks in establishing peaceful, normal relations between some states.

— Carla Del Ponte, former International Criminal Tribunal for the former Yugoslavia prosecutor [318]

 

While there are undoubtedly many factors that influence the resumption of armed conflict, and we do not assert that impunity is the sole causal factor, Human Rights Watch research demonstrates the negative effects of the international community’s failure to confront abuses outside the context of peace negotiations. Absence of accountability in fair and impartial trials for those most responsible for crimes leaves the desire for retribution through legitimate channels unsatisfied. Without individualizing guilt, the notion of collective responsibility for crimes has greater resonance, and it is easier for blame focused on a group to be passed from one generation to the next.

A well-known example of this is Yugoslavia. Assumptions of collective ethnic guilt rooted in atrocities dating back to the Second World War were important in enabling ultra-nationalist politicians in the 1990s to divide communities in Bosnia, Croatia, and Serbia and help sow the seeds for intercommunal violence. Over 40 years after the end of the Second World War, the lack of accountability for atrocities laid the groundwork for propaganda seeking to instill in Serbs a fear of genocide. Influential academics at the Serbian Academy of Arts and Sciences in 1986 tapped into deeply held sentiments when they proclaimed that except during the Ustasha (Croatian pro-Nazi) period during the Second World War, “Serbs in Croatia have never been as endangered as they are today.”[319] Slobodan Milosevic, in his opening statement for his defense before the ICTY, also invoked “the Ustasha genocide over the Serbs[, ...]this terrible mass crime from the not so distant past” to try to explain Serbia’s reaction to the February 1990 rally at which Croatian leader Franjo Tudjman said that the creation of an independent Croatia was an expression of “the historical aspirations of the Croatian people.”[320] Milosevic characterized the response of the Serbian people (such as placing barricades to the entrances of their settlements during the “log revolution” and other acts in defense of Vukovar characterized by the ICTY as criminal) as collective defense in response to the “recurring Ustasha terror and ideology.”[321]

Serbian media gave increasing prominence to this alleged threat facing Serbs in Yugoslavia in the late 1980s and early 1990s. Years later the ICTY noted that following Slovenia’s and Croatia’s declarations of independence, “[p]ro-Serb propaganda became increasingly visible ... . The Serb media propagandised the idea that the Serbs had to arm themselves in order to avoid a situation similar to that which happened during World War II when the Serbs were massacred. Terms like ‘Ustasa’, ‘Mujahideen’ and ‘Green Berets’ were used widely in the press as synonyms for the non-Serb population.”[322] A Serb leader from Croatia, Milan Babic, admitted to making ethnically-based inflammatory speeches, stating that he was strongly influenced by Serbian propaganda that repeatedly referred to an imminent threat of genocide by the Croatian authorities against the Serbs in Croatia.[323]

The failure to establish individual accountability and to address the past in Yugoslavia during Tito’s iron-fisted reign created suppressed resentments that were later tapped by ambitious politicians for their own political and nationalistic ends. The following are other examples of situations in which ethnic tension fostered by impunity contributed to cycles of violence.

A. Kenya

Following the December 27, 2007, elections in Kenya, violence erupted throughout the Rift Valley and in the west of the country as angry citizens burned and looted factories, shops, and homes, and chased those perceived to be supporters of President Mwai Kibaki (the declared winner of the disputed election) away. Members of Kibaki’s Kikuyu tribe in particular were targeted. Kikuyu militias then struck back. In the two months after the election, over 1,100 people were killed.

The violence echoed previous episodes of political violence in Kenya for which no one was held accountable. Many of those implicated in the post-election violence were high-ranking politicians who had been implicated in organizing political violence surrounding the 1992 and 1997 elections but have never been brought to account and continued to commit offenses with impunity. By failing to take action against those most responsible for violence, successive Kenyan governments sent the message that organizing or inciting political and ethnic violence carried no penalty. By taking little action in the face of consistent and chronic patterns of impunity that characterized Kenya’s governments for the past two decades, influential states and international bodies contributed to the recurrence of violence.

By late 1991, concerted domestic and international pressure on the government of President Daniel Arap Moi, including the suspension of aid by the World Bank and bilateral donations conditioned on economic and human rights reforms, forced Kenya to legalize a multiparty system. One year later, in December 1992, elections took place. The return to a multiparty system coincided with the eruption of ethnic violence in Kenya’s Rift Valley, Nyanza and Western provinces. Although the government first portrayed the “tribal clashes” as the result of longstanding conflict over land or the spontaneous response of ethnically divided communities to the heated election campaign, it soon became clear that the violence was being coordinated and that high-ranking government officials had been involved in training and arming “warriors” from President Moi’s ethnic group, the Kalenjin, to attack those from other ethnic groups.

The violence was fomented by “majimbo” rallies held by certain Kalenjin and Maasai politicians who were members of the president’s party. The politicians asserted that the Rift Valley was traditionally Kalenjin/Maasai territory. “Majimboism” was a way to demand the expulsion of all ethnic groups except those who resided in the area before colonialism.[324] Not coincidentally, the groups to be expelled were those predominantly perceived as those who supported the political opposition.[325] It was a kind of ethnic cleansing by constituency.

Kalenjin warriors in numerous similar attacks killed civilians and looted and burned farms inhabited by Kikuyus, Luhyas, or Luos. Some less organized retaliatory attacks against the Kalenjin also occurred, creating an escalating cycle of violence and a growing atmosphere of hatred and suspicion between communities that had lived together more or less peacefully for years.[326] About 300,000 people were driven from their land. The changing demographics caused by the displacement had significant political impact: the Rift Valley province, which was repopulated with government supporters, contains the largest number of seats in Parliament.[327]

Refugees from the 1992 election violence reported that the police and army stood by and did nothing during attacks. Although the government claimed that over 1,000 charges had been brought for the violence, many of the cases were not pursued and those arrested were disproportionately non-Kalenjin.[328]

Although foreign governments expressed dissatisfaction with aspects of Moi’s rule, they did not make it a priority to press him to hold perpetrators responsible for politically motivated violence to account.[329] United States officials made several statements throughout 1993 protesting actions taken by the Kenyan government against freedom of expression, but the United States failed to take a strong position regarding the Kenyan government’s responsibility for the Rift Valley violence: the only US government statement on the violence, in September 1993, publicly welcomed the government’s decision to declare security zones, showing unwarranted faith in security forces acting properly in these circumstances, and saying nothing about accountability.[330] In December 1994 Kenya’s bilateral and multilateral donors expressed satisfaction with Kenya’s economic and human rights record and pledged $800 million in new aid commitments. The resumption of aid without human rights cautions seemed to embolden the government, which appeared to perceive the new aid commitments as tacit consent from the international community to revert to past practices of repression.[331]

Levels of violence rose again in the period leading up to the 1997 elections. In August 1997, a series of attacks in the Coast province killed 40 people and displaced over 120,000. Leaflets were distributed that proclaimed, “The time has come for us original inhabitants of the coast to claim what is rightly ours. We must remove these invaders from our land.”[332] The warnings and attacks were strikingly similar to the “ethnic” violence that had taken place prior to the 1992 elections in the Rift Valley and had targeted some of the same ethnic groups, and they occurred shortly after voter registration indicated that the government would lose the province.[333] The Coast raiders targeted members of ethnic communities that had voted disproportionately against the ruling Kenya African National Union (KANU) party in the 1992 election causing KANU to lose two of the four parliamentary seats in one district that year. As a result of the 1997 attacks, by some estimates 75 percent of likely opposition voters were displaced by the violence and many lost identity documents, making it impossible for them to vote even if they returned to the Coast province constituency where they were registered.[334] As a result, Moi captured the vote that he needed in the violence-stricken province in order to retain the presidency.[335]

Once again, the government response to the violence was inaction. Despite advance warnings, the police took no action to stop the raids. Police investigations when they did occur were seriously inadequate, leading courts to eventually acquit all but a tiny handful of the accused raiders. Coast province leaders intervened to secure the release of arrested politicians. In the end, despite hundreds of arrests and a long governmental inquiry, no one was brought to justice for organizing the attacks.[336] A delegation of human rights groups including Human Rights Watch found that following the failure of the government to act, there were increasing acts of ethnic hatred and violence. Members of the Kikuyu community retaliated against attacks in an organized fashion for the first time.[337]

In July 1998 the Akiwumi Commission (named for the commission’s chair) was established to investigate the so-called “tribal clashes” that occurred in Kenya between 1991 and 1998 and to recommend further investigation or prosecution of perpetrators. The commission sat for 11 months and heard considerable evidence linking ruling party politicians to the violence. It submitted its final report to the president in August 1999. The president refused to release the report publicly for over three years, even in defiance of a court order—the report was finally released in October 2002. Though many high government officials were implicated, no action was taken to prosecute them.[338] Donor nations and the World Bank, while conditioning financial aid on anti-corruption and good governance, failed to press for accountability for past injustices including the release of the commission report and prosecution of major crimes.

The 2007-08 violence continued the pattern of one party’s supporters targeting members of ethnic groups associated with the political opposition. In this case, in the wake of disputed election results, Human Rights Watch found that local leaders in several Kalenjin communities backing the opposition Orange Democratic Movement actively fomented violence against Kikuyu communities that they assumed voted for the ruling Party of National Unity, and which in response fought back.[339] Reprisals by militia groups on both sides of the political divide and excessive use of force by police resulted in hundreds of deaths in late December 2007 and early January 2008. National leaders did little to rein in the abuses of their supporters.[340]

In the months leading up to the December 2007 election, European Union observers noted 34 election-related deaths and catalogued 190 violent incidents ranging from intimidation to murder. The EU mission noted that, “In most cases, abuses did not receive an appropriate response from the police and the judiciary and there was therefore impunity towards perpetrators. Candidates were also observed using hate speech on a limited number of occasions.”[341]

This time, the international community played a positive role in stopping the violence. Foreign governments, the African Union, and United Nations agencies placed significant diplomatic pressure on the Kenyan government and the opposition to control violence, respect the human rights of Kenyans, and reach a political settlement.[342] On February 28, 2008, an agreement was reached between the ruling party and the opposition party that paved the way for a coalition government. The agreement, brokered by former UN Secretary-General Kofi Annan, included a provision establishing a Commission of Inquiry into the post-election violence. The Commission made recommendations for bringing those responsible for post-election violence to justice, including the establishment of a special tribunal to investigate and prosecute those most responsible for the violence.

Once again, however, Kenya’s leaders have so far failed to end impunity. The Kenyan parliament in February 2009 rejected legislation that would set up the special tribunal (for more on the special tribunal see Chapter VII.C).

The repeated failure to stem the ethnically-based political violence and hold perpetrators of human rights abuses to account created a climate of impunity in Kenya that led to cycles of violence. The atmosphere of distrust and division created by the longstanding lack of justice has been repeatedly manipulated by leaders in support of their own political agendas. As with Sudan and Rwanda, because the violence was state-sponsored, concerted international pressure offered the only hope for ensuring accountability for massive crimes. While in Kenya the pressure stopped the violence, failure to sustain that pressure and to actually end impunity is likely to result in more violence sometime in the future. The Kenyan government’s failure to establish a special tribunal to address 2007-08’s post-electoral violence risks creating a precedent of impunity that threatens renewed violence in the next electoral season.

B. Rwanda

In the 13 weeks after April 6, 1994, at least a half a million people perished in Rwanda, including perhaps as many as three-quarters of the Tutsi population and thousands of Hutu who opposed the killing campaign and the forces directing it. The stage was set for the genocide by years of violence for which no one was held accountable. Lack of accountability was a contributing factor to the 1994 events on a number of levels. In particular, a significant contributing factor to the mass atrocities was the international community’s willingness to overlook massacres that occurred between 1990 and 1993. Because the government sponsored the violence, the role of international bodies and influential states in demanding accountability was essential.

The population in Rwanda was comprised of three groups: the Hutu, by far the largest group; the Tutsi; and the Twa, a group so small that it played no political role. Historically, Hutu and Tutsi shared a common culture and occasionally intermarried, though as the state developed, an elite took shape and its members were called the Tutsi; the masses became known as Hutu. During the years of colonial rule, first German, then Belgian, the categories of Hutu and Tutsi became increasingly clearly defined and opposed to each other, with the Tutsi elite seeing itself as superior and having the right to rule, and the Hutu seeing themselves as an oppressed people. In the mid-twentieth century, as the colonialists were preparing to leave, Hutu overthrew the Tutsi elite and established a Hutu-led republic. In the process they killed some 20,000 Tutsi and drove another 300,000 to exile. This event, known as the 1959 revolution, was remembered by Tutsi as a tragic and criminal event, while for Hutu it was seen as a heroic battle for liberation.

During the 1960s some of the Tutsi in exile led incursions into Rwanda, seeking to unseat the new Hutu leadership. Within Rwanda officials incited and, in some cases, led attacks against Tutsi still resident in the country, accusing them of supporting the incursions. Most of the 20,000 counted as victims of the revolution actually died in these reprisal attacks and not in the early combat surrounding the change of power.[343]

Following the 1991 introduction of a multiparty system, authorities tolerated or even encouraged political violence against rivals. Some of the practices used by political parties against opponents (such as apprehending persons at checkpoints, using whistles to signal attacks, and perpetrators covering their faces with chalk) were used again during the genocide. More importantly, the tolerance of violence during this period led to an acceptance of violence in pursuit of political ends as “normal.”[344]

In addition, in the three-and-a-half years prior to the genocide, some 2,000 Tutsi and dozens of Hutu were slaughtered in what was effectively a rehearsal for what was to come. Playing upon memories of past domination by Tutsi and the legacy of revolution that overthrew their rule, President Juvenal Habyarimana and his circle campaigned to create hatred and fear of the Tutsi as a way of pulling dissident Hutu back to his side.[345] Propagandists echoed and magnified the suspicion sown by Habyarimana and the officials around him both before and during the genocide.[346] In more than a dozen communes, in the years 1990-93, there were 17 incidents of serious violence. Authorities tolerated and incited small-scale sporadic killings of Tutsi throughout this period and also initiated attacks in reaction to challenges that threatened Habyarimana’s control. In particular, massacres of Tutsi occurred in Kibilira 10 days after the October 1, 1990, invasion by the Tutsi Rwandan Patriotic Front (RPF) (led by children of the Tutsi who fled the 1959 revolution) and again immediately following the RPF strike at Ruhengeri on January 22, 1991. By organizing reprisals against Tutsi civilians, the government was able to rid itself of some of its declared “enemies.”[347]

Local officials directed the early massacres of Tutsi in several places, telling people that participating in the attacks was their “umuganda” or monthly communal work obligation. These attacks were well-orchestrated by the government. For example, in January 1993 two burgomasters halted the attacks during the visit of an international commission investigating human rights violations, saying that the slaughter would resume when the group left. Killings did in fact begin again within several hours of the commission’s departure.[348] This type of control indicates that the violence could have been prevented.

No one, neither officials nor ordinary citizens, was ever convicted of any crime in connection with the massacres that took place between 1991 and 1993.[349] The prefect of the prefecture next to Kibilira (where the first massacre occurred in 1990) warned in early 1991 that the killings might begin again because those involved in the killings had been released from prison and “were boasting of ‘brave deeds’ that had gone unpunished.”[350]

The lack of accountability (and indeed the official support for the violence) sent a clear message that not only would such atrocities be tolerated, but also encouraged. Impunity for earlier crimes made it easier to mobilize the masses for the greater slaughter that took place in April 1994.

Because there was no justice in national courts for the state sponsored violence, the primary hope for accountability for these crimes was pressure from the international community. Relative silence on an international level, therefore, played an important role in enabling the genocide to occur.

In pursuing ethnic violence as a way to keep political power, Habyarimana and his supporters stayed alert to any international reaction to the killings. Mindful of Rwanda’s dependence on foreign aid, Rwandan activists pressed international human rights organizations to form the International Commission of Inquiry into Human Rights Abuse in Rwanda.[351] The International Commission amassed substantial data to show that “President Habyarimana and his immediate entourage bear heavy responsibility for these massacres [from October 1990 through January 1993] and other abuses against Tutsi and members of the political opposition.” The report, published March 8, 1993, was widely distributed among donor nations. International donors accepted its conclusions and expressed concern but took no effective action to insist that the guilty be brought to justice or that such abuses stop.

The UN special rapporteur on summary, arbitrary, and extrajudicial executions undertook a mission to Rwanda in 1993 and produced a report in August 1993 that largely confirmed the report of the International Commission and concluded that in his judgment the killings were genocide under the terms of the 1948 Convention for the Prevention and Punishment of Genocide. In response, Habyarimana issued a formal statement in which the government “recognizes and regrets the human rights violations committed in our country,” but the government denied that officials took the initiative in the abuses, and declared only that it had failed to assure the security of those attacked and promised to undertake a series of human rights reforms.[352] This profession of good intentions was enough to secure the continuing favor of donors.

The international community’s willingness to accept excuses for “lesser” massacres and its continuing acceptance of impunity for killers in official positions contributed to further slaughter that was unambiguously genocidal in nature. The attacks between 1990 and 1994 allowed Habyarimana’s supporters to perfect some of the organizational and logistical methods that they would use during the 1994 genocide. The lack of a strong response from abroad demonstrated that this type of slaughter would be tolerated by the international community.[353]

In the first few weeks of the 1994 genocide, international leaders again failed to condemn the mass killings that were taking place in Rwanda. The impact that an international response might have had was only seen once the genocide was well underway. After the US communicated its disapproval in late April, Rwandan authorities cared enough to send orders down to the hills that killings should be brought under control (albeit not ceased altogether; the orders also mentioned conducting killings out of sight). The day after a phone call by Deputy Assistant Secretary of State for African Affairs Prudence Bushnell to the Rwandan army’s Chief of Staff Col. Augustin Bizimungu telling him his officers would be held responsible if they did not stop the massacres, he wrote to the Ministry of Defense saying, “it [is] urgent ... to stop the massacres everywhere in the country.”[354] Similarly, following international censure of the killing of orphans in Butare, Bizimungu directed his subordinates in that town “to do everything necessary to stop the barbarities.”[355] At a communal council meeting in a remote area, the burgomaster warned local leaders that satellites passing overhead could track continued violence and that such displays would make re-establishment of good relations with the US impossible. Thus, it was seen that international censure, timid and tardy as it was, prompted Rwandan authorities to restrict and hide killings.[356]

C. Burundi

In Burundi, the absence of criminal prosecutions has contributed to periodic explosions of inter-ethnic strife and, more recently, intra-ethnic political conflict. For decades the conflict in Burundi, as in Rwanda, has taken the shape of a struggle between two ethnic groups: the Hutu (approximately 85 percent of the population) and the Tutsi (who make up around 15 percent). Most Burundians have suffered some kind of ethnically motivated attack or have family members who have so suffered, yet few have seen justice for these crimes.[357] Extremists exploited the resulting anger and fear between the two ethnic groups to instigate violence for their own ends. The ethnic nature of the conflict disguised and embittered what was fundamentally a battle over economic and political power. After 2003, a Hutu rebel group continued fighting a Hutu-led government, exposing the political nature of the conflict.

Lack of access to justice for war crimes was one factor that pushed rebel movements to take up arms and was then used by them to justify their own abuses. An absence of accountability has also created a situation in which leading politicians, as well as senior officials and lower-ranking members of the police, army, and intelligence service, may have committed war crimes against the very citizens that they are obligated to protect.

Cycles of ethnically linked violence began in Burundi under the reign of a Tutsi king, Mwambutsa, not long after it regained its independence from Belgium in 1962. A Rwandan Tutsi refugee was accused of assassinating the first Hutu prime minister three days after his appointment in January 1965. When Mwambutsa appointed a Ganwa[358] rather than a Hutu to succeed him the following October, Hutu soldiers and gendarmes attempted a coup.[359] The army subsequently executed several Hutu military officers and nearly all prominent Hutu politicians. They also began to purge Hutu from the ranks of the armed forces. Hutu in Muramvya province attacked Tutsi residents and soldiers, and militia responded by massacring some 5,000 Hutu.[360] An amnesty law, passed in 1967, protected the perpetrators of this violence.[361]

Violence was rekindled in April 1972 when Hutu insurgents attacked and captured two southern Burundi towns and killed many Tutsi residents. The army of the Tutsi-led government easily quelled the uprising but used it as a pretext for a massive slaughter of Hutu: the army and Tutsi militia killed an estimated 200,000 people, targeting in particular teachers, students, clergy, and other Hutu intellectuals as well as Hutu soldiers. There was no accountability for the perpetrators of these atrocities, which have been termed “selective genocide.”[362] In the following two decades, Tutsi government leaders continued the policy of systematic discrimination against Hutu.[363]

Lack of accountability for the 1972 massacres and events in neighboring Rwanda powerfully shaped subsequent political thought and action.[364] Members of each group feared violence—even potential annihilation—by the other and felt anger for past sufferings. Burundian Tutsi viewed the slaughter of Tutsi in Rwanda following the Tutsi loss of power there in 1959 as a warning and feared that sharing power with Hutu in Burundi would also lead to large-scale killing of Tutsi. Hutu keenly remembered the “selective genocide” of Hutu intellectuals in 1972 and feared and distrusted both civilian and military authorities. They felt that they remained vulnerable to similar attacks as long as Tutsi retained a monopoly on political and military power. Hundreds of thousands of Hutus fled the country after the massacres in 1972; it was a group of these refugees who founded the rebel movement Party for the Liberation of the Hutu People–National Liberation Forces (Parti pour la libération du peuple hutu–Forces nationales de libération, Palipehutu-FNL), in a Tanzanian refugee camp in 1980.

When Hutu rose up in 1988 in provinces along the Rwandan border and killed several thousand Tutsi, President Pierre Buyoya permitted the army to restore “peace and order” by using helicopters and armored vehicles to massacre some 20,000 Hutu.[365] Buyoya rejected calls for an independent investigation into the 1988 massacres and passed another amnesty law in 1990.[366] Palipehutu-FNL launched several attacks in northwestern provinces of Burundi in 1991 and 1992 killing a number of Tutsi. In each case, the army retaliated against the Hutu population, killing an estimated thousand civilians.[367]

On July 10, 1993, Melchior Ndadaye became the first Hutu president of Burundi. To avert changes the president was planning, a small group of Tutsi soldiers attempted to seize power on October 21, 1993. They captured and later executed Ndadaye along with a number of other high-ranking civilian political officials. Following the assassination, Hutu bands massacred thousands of Tutsi. Burundian soldiers and national police, sometimes aided by Tutsi civilians, massacred thousands of Hutu, including in areas where few or no Tutsi had been killed. In a period of only a few weeks, between 30,000 and 50,000 people from both groups were slain.[368]

In response to Burundian and international outcry, the UN Security Council established a commission to inquire into these crimes. The commission found that “impunity has, without any doubt, been an important contributing factor in the aggravation of the ongoing crisis.” It concluded that acts of genocide had been committed against the Tutsi and that indiscriminate killing had occurred against Hutu.[369] Although the commission recommended in 1995 that international jurisdiction should be asserted with respect to the genocide committed against the Tutsi in 1993 and should extend to other acts committed in the past, including the effort to exterminate educated Hutu in 1972, the Security Council did not take action to create a court (as it had done for the former Yugoslavia in 1993 and Rwanda in 1994), and those responsible remained in power, with devastating consequences. Donor nations also did nothing to insist that those responsible be brought to trial—neither army officers responsible for the assassinations of political leaders and the killings of Hutu civilians, nor the Hutu officials and ordinary people who had slaughtered Tutsi. Those most implicated in the killings continued to exercise power as they had before. This demonstrated to people in both Burundi and Rwanda that influential governments were willing to tolerate slaughter in a region that was not of strategic concern.[370]

Burundian courts also failed to deliver satisfactory justice for most of the 1993 crimes. The judges who tried persons accused of having assassinated Ndadaye found guilty a number of lower-ranking military officers but acquitted others of senior rank or more political importance. Other courts tried only about 20 percent of the 9,500 persons jailed for supposedly having participated in the 1993 crimes. Most of the accused were Hutu and virtually all of the judges were Tutsi, leading many to question the credibility of the proceedings and verdicts in these cases.[371]

The years following the 1993 massacres were characterized by continuing cycles of ethnic violence and civil war. Two Hutu guerilla groups, the Palipehutu-FNL and the National Council for the Defense of Democracy–Forces for the Defense of Democracy(Conseil national pour la défense de la democratie–Forces pour la défense de la democratie, CNDD-FDD), attacked military targets and Tutsi civilians in Burundi with support from the broader Hutu population; in response, the armed forces and militia retaliated strongly against Hutu civilians, killing hundreds of non-combatants in “pacification campaigns.”[372]

Impunity for atrocities committed by Tutsi civilians and soldiers remained the norm. Because so few Tutsi were brought to justice for crimes against Hutu, Hutu did not expect justice from the Tutsi-dominated courts. For example, a military court sentenced two officers to four months in prison for involvement in the massacre of 173 civilians in Itaba commune, Gitega province, in 2002. The officers were not convicted of murder but rather of failing to report the situation accurately and were immediately released from prison since they had spent five months in jail awaiting trial.[373] Prosecutors in the military justice system later used an immunity provision in a 2003 agreement between a holdout rebel group and the government to justify not prosecuting Tutsi soldiers.

Even after a series of peace agreements between 2000 and 2003 brought other Hutu rebel groups into the government, one group, the National Liberation Forces, continued to use ethnic rhetoric to inflame violence. The FNL sometimes invoked impunity for past crimes against Hutu as a supposed justification for the FNL’s own abuses, as in the case of the FNL’s slaughter of more than 150 Congolese Banyamulenge (a group identified with Tutsi) at Gatumba refugee camp on August 13, 2004.[374] In an August 30, 2004, press release, the FNL professed to want to know “why the same compassion [as shown for the Gatumba victims] was not shown when there were massacres of millions of Burundian Hutus and Rwandan refugees in the Congo.” The release also specifically referred to the 2002 Itaba commune massacre, in which the head of the Gatumba military camp had been implicated.[375]

The 2000 Arusha Accord and subsequent agreements between the government and various rebels groups included provisions for the eventual establishment of a truth and reconciliation commission as well as a special tribunal for the prosecution of conflict-related crimes. However, a 2003 ceasefire agreement between the government and the strongest Hutu rebel group, the CNDD-FDD, provided for “provisional immunity” for all parties to the conflict.[376] According to the agreement, provisional immunity would last until a truth and reconciliation commission was in place and could establish responsibility for past crimes. A similar provision was included in an agreement with Palipehutu-FNL in 2006.[377]

After the CNDD-FDD entered government and subsequently won national elections in 2005, former rebels were integrated into the reformed police and army with no vetting process. Tutsi soldiers and gendarmes were also integrated with no regard for their past abuses. Nor was there vetting of FNL rebels integrated into the security forces in April 2009. The likely presence within the forces of individuals who had committed war crimes contributes to ongoing mistrust, particularly between the population and the police, as police officers, among others, continue to commit abuses. Others implicated in serious abuses hold political office. The current FNL leader, Agathon Rwasa, a possible presidential candidate in 2010, was indicted for the Garumba massacre in 2004 but has not been tried. Burundians frequently cite some senior members of other major political parties, including Front for Democracy in Burundi(Front pour la Démocratie au Burundi, FRODEBU) and Union for National Progress (Union pour le Progrès national, UPRONA), as having incited past political violence, particularly between 1993 and 1996.

Given this political landscape, it is not surprising that virtually no progress has been made in establishing the accountability mechanisms that Burundi committed to in agreements with the United Nations. Both CNDD-FDD and the FNL have an interest in promoting “amnesty” and “pardon” over justice, though a recent study showed that the majority of Burundian citizens support the implementation of justice initiatives.[378] A UN commission sent in 2004 to investigate possible mechanisms to address impunity for serious crimes in Burundi concluded, “In an ethnically divided society, where little agreement exists on any of the issues relating to the major events in Burundi since its independence in 1962, there was unanimous support for the establishment of an international judicial commission of inquiry to ... investigate the crimes and, should it classify the crimes as genocide, war crimes and other crimes against humanity, serve also as a trigger mechanism for the establishment of an international criminal tribunal.”[379] Support for such mechanisms among political leaders, however, appeared to diminish as they became aware that they themselves could be subject to prosecution. The international community, perhaps suffering from donor fatigue after creation of the ad hoc tribunals for the former Yugoslavia and Rwanda, has failed to press sufficiently for the establishment of truth and justice mechanisms.

As Neil Kritz pointed out as early as 1996, “Some observers would suggest that the best way to achieve reconciliation in a situation such as that present in Burundi is to leave the past in the past. ... If the goal, however, is something more than a tenuous, temporary pause in the violence, dealing in a clear and determined manner with past atrocities is essential.”[380]

The risk of armed conflict is fed by heightened fear and hatred between ethnic groups and political factions, emotions that are both real and manipulated by political leaders for their own ends. The failure of the justice system to establish individual guilt enabled politicians to assign responsibility for past crimes to the totality of the opposing ethnic group, thus reinforcing hatred and fear among Hutu and Tutsi alike. As the conflict’s ethnic dimensions gradually diminished and gave way to political conflict, impunity for past crimes also contributed to conflicts between Hutu groups. Without credible court judgments, it is easier for politicians to establish guilt by appealing to their own version of history.[381] Justice for all victims of serious crimes—regardless of the perpetrator—could blunt use of ethnic hatred as a powerful tool to mobilize followers for violence.[382]